Pierre v New York Community Hosp. of Brooklyn, Inc.

Supreme Court, Kings County

Decided on May 15, 2026

Index No. 513428/2022

Consuelo Mallafre Melendez, J.

Recitation, as required by CPLR § 2219 [a], of the papers considered in the review:

NYSCEF #s:     Seq 4: 76 — 93, 108 —109, 113

                           Seq 5: 94 — 105, 110 — 112, 114 — 117

Defendant New York Community Hospital of Brooklyn, Inc. ("NYCH") moves for an Order, pursuant to CPLR 3212, granting summary judgment in their favor and dismissing Plaintiff's Complaint in its entirety (Seq. No. 4).

Plaintiff opposes the motion and separately moves for an Order, pursuant to CPLR 3212, granting summary judgment in their favor on the issue of liability (Seq. No. 5).

Eny Desir ("Decedent") commenced this action on May 9, 2022, asserting claims of [*2]medical malpractice^FN1 against Defendant NYCH. She subsequently passed away and was substituted in this action by the administratrix of her estate. Plaintiff's claims arise from a fall Decedent sustained in the night or early morning of September 10, 2021, while she was a patient at the hospital.

On September 7, 2021, Decedent presented to the NYCH emergency department with complaints of generalized weakness and fatigue over the past two weeks. She was 76 years old and assessed with anemia and hypomagnesemia. She was admitted to the medical floor.

During her admission to NYCH, Decedent's Fall Risk Assessment was calculated at various times as 4 (no risk) through 10 (high risk). On the evening of September 9, Nurse Fanielle Rameau ("Nurse Rameau") documented her fall score as 7. According to the medical record and NYCH's internal policies, this score indicated a heightened fall risk with preventative measures, but it did not meet the threshold for a "pod" bed, i.e., a semi-private room with continuous monitoring by a nursing assistant.

At approximately 4:00 a.m. on September 10, Decedent's bed alarm went off and she was found sitting on the floor by Nurse Rameau. Her fall was not witnessed by any staff, and she reported at different times that she "rolled off the bed while sleeping" or she was "trying to turn or get up." A nursing note at 4:20 a.m. documented that she was examined by Dr. Rajou, and she had a laceration under her right eye and tenderness in her ribs. A chest x-ray and head CT scan were performed, and surgical and ophthalmology consults were ordered to assess her eye injury. She sustained a vitreous hemorrhage and blown pupil causing decreased vision/blindness in her right eye. She was ultimately discharged from NYCH on September 14, 2021.

Plaintiff alleges that the nurses and staff at NYCH departed from the standard of care by failing to appropriately assess Decedent's fall risk and place her in a pod unit bed with heightened precautions, and that this departure was a proximate cause of her September 10 fall and resulting injuries.

"Medical malpractice actions require proof that the defendant physician deviated or departed from the accepted community standards of practice, and that such deviation was a proximate cause of the plaintiff's injuries. On a motion for summary judgment dismissing a cause of action alleging medical malpractice, the defendant bears the initial burden of establishing that there was no departure from good and accepted medical practice or that any alleged departure did not proximately cause the plaintiff's injuries." (Graham-Guerrier v Tercel, 245 AD3d 898, 899-900 [2d Dept 2026] [internal quotation marks and citations omitted].)

"To meet that burden, a defendant must submit in admissible form factual proof, generally consisting of affidavits, deposition testimony and medical records, to rebut the claim of malpractice" (Miller-Albert v EmblemHealth, 231 AD3d 1147, 1148 [2d Dept 2024]). "If the defendant makes such a showing, the burden shifts to the plaintiff to raise a triable issue of fact as to those elements on which the defendant met its prima facie burden of proof" (Graham-Guerrier at 900, quoting Stewart v N. Shore Univ. Hosp. at Syosset, 204 AD3d 858, 860 [2d Dept 2022]).

Where a plaintiff moves for summary judgment on liability in a medical malpractice action, they bear the prima facie burden of establishing both "(1) a deviation or departure from [*3]accepted medical practice, and (2) evidence that such departure was a proximate cause of injury" (Bueno v Allam, 170 AD3d 939, 941 [2d Dept 2019], quoting DiMitri v Monsouri, 302 AD2d 420, 421 [2d Dept 2003]). The burden similarly shifts to the defendant to raise triable issues of fact on either the standard of care or proximate causation.

"Generally, summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions" (Garcia v Hollander, 241 AD3d 651, 653 [2d Dept 2025] [internal quotation marks and citations omitted].) However, "expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact" (Barnaman v Bishop Hucles Episcopal Nursing Home, 213 AD3d 896, 898-899 [2d Dept 2023]).

In support of their motion (Seq. No. 4), Defendant NYCH submits an expert affirmation from Lawrence N. Diamond, M.D. ("Dr. Diamond"), a licensed physician board certified in family practice and geriatric medicine.

Dr. Diamond opines that all treatment and care rendered to Decedent at NYCH complied with the standard of care for fall risk assessment and prevention. He opines that in her initial nurse assessment on September 7 at 10:05 a.m., she was properly scored a fall risk of 6, and he notes that any score above 5 is considered "at risk for falls." He opines that the hospital acted in accordance with the standard of care by implementing a fall prevention protocol including "red ruby slippers placed on patient, bed in the lowest position, bed alarms on, call bell within reach, hourly nursing rounds, toileting every two hours, area around bed clutter free, patient/family educated, [and] two upper side rails in the upright position."

Dr. Diamond notes that Decedent was briefly assessed as 4 (no risk) on September 8 at 10:05 a.m., but her chart was updated later the same morning to include the safety protocol, and she was reassessed that evening with the same fall risk prevention measures listed above.

On the evening of September 9, Dr. Diamond opines that Nurse Rameau's fall risk score of 7 was "correct," based on a point system including "fatigue/weakness," "dizziness/balance problems," "inability to understand/follow instructions," and "multiple drugs from different classes." He opines that no other categories in the scoring system were applicable to the patient.

Dr. Diamond opines that a pod bed with a nursing assistant present at all times was not indicated for Decedent. He states that such beds are primarily used for mentally or developmentally disabled patients who cannot follow instructions and may attempt to climb out of bed. He opines that Decedent did not meet the criteria of either (a) a fall risk score of 8 or higher, or (b) a fall risk score of 5 or higher plus a history of falls, history of restlessness/wandering, cognitive impairment, or advanced age over 85.

According to the chart and Nurse Rameau's testimony, he opines that appropriate measures were in place on the night of September 9-10, including instructions (in Creole) to call for help if needed, bed in a low position, and two upright side rails. He opines no further interventions were required by the standard of care.

Dr. Diamond further opines that no alleged departures by NYCH were a proximate cause of Decedent's fall on September 10. He states that the sole cause of her fall was that she "rolled off the bed during her sleep despite two upper side bedrails." He opines that the hospital and its staff had no way to know she had a history of being "a restless sleeper that moved violently while sleeping," and a pod bed would not have prevented her from rolling out of the bed in that manner.

Based on the submissions, the movant has established entitlement to summary judgment. [*4]The expert set forth detailed opinions that Decedent's fall risk was scored appropriately, preventative measures were in place on the evening of her fall, and further interventions (specifically a pod bed with continuous monitoring form a nursing assistant) were not required by the standard of care. He also established that her fall was not proximately caused by any alleged departure from the standard of care. The burden therefore shifts to Plaintiff to raise a triable issue of fact.

In opposition and support of their own motion for summary judgment (Seq. No. 5), Plaintiff submits an expert affirmation from Stacey Kelland, R.N. ("R.N. Kelland"), a registered nurse and nurse educator. She affirms that she is familiar with the standard of care for assessing a patient for fall risk and implementing fall risk prevention measures.

An expert opinion need not be provided by a specialist, but the expert must demonstrate that they are "possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable" (DiLorenzo v Zaso, 148 AD3d 1111, 1112-1113 [2d Dept 2017]). As the Defendant argues in their papers, a registered nurse is generally not qualified to opine on the decision-making of physicians, as it is not in the scope of their training or experience (see Boltyansky v New York Community Hosp., 175 AD3d 1478, 1479 [2d Dept 2019]; Novick v South Nassau Communities Hosp., 136 AD3d 999, 1001 [2d Dept 2016]). The Second Department has also held that nurses cannot offer a medical opinion on whether the alleged departures were a substantial factor in producing the injury, "unless the matter is one which is within the experience and observation of the ordinary juror" (see Zak v Brookhaven Mem. Hosp. Med. Ctr., 54 AD3d 852, 853 [2d Dept 2008]).

However, a nurse is qualified to render an expert opinion on the applicable standard of nursing care. For example, expert affirmations and testimony from registered nurses have been accepted as probative in cases involving administration of medication without a physician's order (i.d. at 853), reporting of vital signs and symptoms (Alvarellos v Tassinari, 222 AD3d 815, 819-820 [2d Dept 2023]), and treatment of pressure ulcers (O'Connor v Kingston Hosp., 166 AD3d 1401, 1402 [3d Dept 2018]).

For this reason, the Court finds Plaintiff's nursing expert R.N. Kelland has laid a proper foundation to opine on the NYCH nurses' assessment and "scoring" of Decedent's fall risk, and their implementation of fall prevention measures. It is within the expert's background and education to opine on what constitutes good and accepted nursing practice in this area.

R.N. Kelland opines that the nursing staff at NYCH departed from good and accepted nursing practices by not properly conducting the patient's Fall Risk Assessment. Specifically, she notes that Decedent's fall risk scores "varied widely" between her initial assessment and the time of her fall, with some nurses scoring her as low as 0-4 or "no risk" on September 7 at 9:59 a.m. (Nurse Serrano-Carino), and on September 8 at 10:06 a.m. (Nurse Irinia Matatova). Conversely, she was scored as high as 9-10 on the evening of September 7 by Nurse Keshia Desir and Nurse Esmeralda Ramirez.

On the night before her fall, September 9, she was assessed with a fall risk of 7 by Nurse Rameau, with points given for "fatigue/weakness," "dizziness/balance problems," "inability to understand/follow instructions," and "multiple drugs from different classes." However, based on the hospital's own scoring system, R.N. Kelland opines that her fall risk should have been 15, with additional points for "history of previous falls," "impaired mobility," "alteration in elimination," "confused," "disoriented to person/place/time," "lack of familiarity with surroundings," "drugs that have a diuretic effect," and "thought altering/hypotensive drugs."

R.N. Kelland provides references to the medical record supporting the inclusion of each of these factors. She opines that Decedent had documented constipation, unsteady gait (impaired mobility), and altered mental status sufficient to include those factors in her risk assessment. R.N. Kelland also opines that it was improper to merely check the "drugs from multiple classes" box, and her specific diuretic and hypotensive medications should have contributed to a higher cumulative score.

The nursing expert further notes that Decedent was a restless sleeper and slept "on a mattress on the floor" at home according to Nurse Rameau's testimony, but this was not accounted for in her history or assessment. She was also noted to have a history of prior falls on admission, but the chart was inconsistent in including "history of falls" in her risk assessment. R.N. Kelland opines that the nursing staff failed to adequately obtain her medical history when assessing her fall risk.

R.N. Kelland opines that even accounting only for the following factors — history of falls (2), fatigue/weakness (2), diuretic medication (1), hypotensive/thought altering medications (1), and multiple drug category medications (2) — Decedent's "baseline" risk assessment should never have been scored below an 8. She further opines that her score should have been "at least 12" on the night of September 9, because Nurse Rameau did not include appropriate points for her medications or mental confusion. Thus, she opines that Nurse Rameau and other nurses who scored her from 0-7 departed from the standard of care.

R.N. Kelland notes that on a risk score of 8 or above, the hospital's own policy was to provide a "pod" bed, a semi-private room with continuous observation and monitoring. Further, the hospital's policy was to provide a pod bed for a score of 5 or above if other criteria including "inability to follow instructions" was met. Plaintiff's expert therefore disagrees with the movant's expert that a pod bed was not required by the standard of care. Plaintiff's expert also opines that additional fall measures should have been undertaken, such as "more frequent checks" every 30 minutes, moving her to a room closer to the nurse's station, and placing the bed alarm on a "sensitive" setting that would activate from tossing and turning.

R.N. Kelland opines that the nurses and nursing assistants failed to sufficiently document whether or not they were adhering to the fall safety measures. She notes there were orders in place to toilet the patient every two hours and "side rails up 2x," but it is not clear from the record whether these measures were actually performed by Nursing Assistant Joazard or others.

Additionally, Plaintiff submits an expert affirmation from Aldo A. Arpaia, M.D. ("Dr. Arpaia"), a licensed physician board certified in internal medicine.

Dr. Arpaia opines solely as to proximate causation. He opines that all the claimed injuries sustained by Decedent, including "injuries to [her] right eye, head, face, concussion, and cervical spine sprain" were proximately caused by her fall on September 10, 2021. He further opines that all such injuries are "reasonably expected for a patient that sustained a traumatic blow to the head" from falling and striking a bedside table, as well as the "jerking motion" to her neck from the impact and the damage to her right pupil and vision.

As the Defendant argues in reply, Plaintiff's expert also renders opinions on the care rendered to Decedent after the fall and the hospital's training and risk assessment policies, which were not claimed in the Bill of Particulars and are not properly before the Court in this motion.

Notwithstanding, based on evaluation of these submissions, the Court finds that Plaintiff has raised issues of fact precluding summary judgment for NYCH. Plaintiff's expert affirmation from a registered nurse sets forth in sufficient detail, with citations to the record, her opinion that [*5]the NYCH nursing staff improperly calculated Decedent's fall risk assessment, and by the applicable standard of care she should have been scored higher and provided additional observation. These opinions conflict with the movant's expert that she was correctly evaluated and that no further precautions were required. "When experts offer conflicting opinions, a credibility question is presented requiring a jury's resolution" (Stewart v. North Shore University Hospital at Syosset, 204 AD3d 858, 860 [2d Dept. 2022], citing Russell v Garafalo, 189 AD3d 1100, 1102 [2d Dept. 2020]).

Plaintiff's nursing expert also opined that Decedent's September 10 fall was caused by a lack of adequate supervision and monitoring. In contrast, Defendant's experts stated that she either rolled past the side rails or wandered out of bed unexpectedly, which they opine could not have been foreseen or prevented. The Court notes that some of the experts' conflicting opinions on this issue are linked to an unresolved question of fact as to exactly how Decedent's fall occurred.

There also remain issues of fact as to whether the September 10 fall was proximately caused by alleged departures from the standard of care, and if so, the extent of her injuries and damages. For these reasons, Defendant's motion for summary judgment must be denied.

With respect to Plaintiff's own motion for summary judgment on liability, they submitted expert affirmations from R.N. Kelland and Dr. Arpaia as discussed above. For the reasons discussed, the experts have set forth sufficient opinions on the standard of nursing care and proximate causation to meet their prima facie burden, shifting the burden to Defendant to raise issues of fact.

In opposition to Plaintiff's summary judgment motion, Defendant NYCH provides an expert affirmation from Dr. Diamond, the aforementioned physician board certified in family and geriatric medicine. In this affirmation, Dr. Diamond reiterates his opinions that the hospital did not depart from the standard of care. He counters R.N. Kelland's opinions regarding the fall risk assessment on September 9, opining that she did not need to check the "diuretic medication" box because the effects of that medication (Lasix) were already out of her system. He also opines that there was no need to give points for being "disoriented," contrary to R.N. Kelland's interpretation of the record.

Defendant NYCH also offers a new expert affirmation from a registered nurse, Joy B. Alvarez, R.N. ("R.N. Alvarez"), in opposition to Plaintiff's summary judgment motion.

R.N. Alvarez opines that Decedent was "appropriately assessed and placed on fall risk prevention protocol" which included two upper side rails in the upright position. She opines that the patient did not meet the heightened risk requirement of a pod bed, restating the same opinions of Dr. Diamond that the additional medication and mental status risk factors did not apply to Decedent.

R.N. Alvarez states that if the patient fell out of bed in her sleep, the hospital staff could not have known she was a restless sleeper or that she required greater precautions than upright bedrails. However, she also acknowledges that there are discrepancies in the record and testimony as to whether Decedent fell while sleeping or whether she was trying to get out of bed. If she was trying to get out of bed to use the bathroom, R.N. Alvarez opines that she "should have never attempted" to do so, and she had been properly advised to call the nursing staff for help. She opines that no alleged departures from the standard of care were the cause of her fall.

Based on all the submissions herein, there are clear issues of fact raised by the parties' physician and nursing experts as to whether NYCH staff departed from good and accepted [*6]practice. The experts have offered detailed conflicting opinions as to whether Decedent's fall risk assessment was appropriately calculated based on the hospital's assessment tool and policies.

As discussed above, the parties' experts have also offered conflicting opinions as to whether the alleged departures proximately caused Decedent's fall, or whether the fall was unavoidable despite proper fall precautions. Additionally, there are questions of fact in the record as to how Decedent's fall occurred, which would impact any finding of proximate causation and must be determined by a jury. Therefore, the Court cannot determine as a matter of law whether the hospital's alleged departures proximately caused Decedent's fall and injuries.

Accordingly, summary judgment cannot be granted to either Defendant NYCH or Plaintiff, and both motions are denied.

It is hereby:

ORDERED that NYCH's motion for summary judgment (Seq. No. 4) is denied; and it is further

ORDERED that Plaintiff's motion for summary judgment on the issue of liability (Seq. No. 5) is denied.

This constitutes the decision and order of the Court.

ENTER.

Hon. Consuelo Mallafre Melendez

J.S.C.